Subject: Re: Examples needed against Soft Patents
From: Taran Rampersad <>
Date: Thu, 20 Jan 2005 03:47:56 -0500

Stephen J. Turnbull wrote:

>>>>>>"Taran" == Taran Rampersad <> writes:
>    Taran> Stephen J. Turnbull wrote:
>    >>>>>>> "Taran" == Taran Rampersad <> writes:
>    Taran> Now, consider the Trade Secret:
>    >> AKA the "ASP loophole" in the GPL.  People are well aware of
>    >> this aspect.  But trade secrets can't force free software to go
>    >> _backward_.
>    Taran> Well, I didn't say that it was something anyone in Free
>    Taran> Software ever said what you are saying. So I do not
>    Taran> understand where part of your response came from. I wasn't
>    Taran> even talking about Stallman other than a reference to him
>    Taran> in the history of the matter.
>I simply meant to address your claim that FLOSS people talk about
>copyright and patents, but neglect trade secrets.  My point is that
>FLOSS advocates are aware of trade secrets, they're just not
>particularly of importance to the movement in my opinion, and I
>advance that as the reason why they aren't discussed so much.

I shall explain this, then, since it is apparently quite a bit off the
beaten path.

Companies and corporations operate on business logic. Business logic and
memory are part of what makes a company successful. intellectual capital
and intellectual usability of said capital.

Take Google for example, running Linux on all of it's servers. But do we
really know how Google remains profitable? Is it the technology? No.
It's the technology and the intellectual capital. The same technologies
are available to anyone, but Google adds value (no pun intended). Their
intellectual capital is a trade secret; it's what makes them successful
and makes them competitive in an increasingly competitive market.

The way for one company to beat another, given more capital, is to
invest so much in R&D. To keep up, competitors have to also invest close
to as much to doing the same given equal intellectual capital and the
ability to use that intellectual capital.

With Free Software and Open Source licenses - ALL of them - a company
can create it's own code from FLOS products and keep them inhouse -Free
Software (and the majority of open source) licenses would require them
to assure that if they distribute their software which is based on FLOS,
they have to give out their source code and allow people to make
changes. But how many companies would release their business
intelligence so that customers can use it? And if it's custom code that
they have? It's a... trade secret. And if they don't distribute, they
don't have to share the source code.

Honestly, I haven't read the latest GPL though. I do need to take the
time and do that, because this is actually something that some people
don't want.

But with a patent, corporations stand to lose their business
intelligence through patenting - wholesale patenting - because
competition can license a patent, and if they have enough fiscal and
intellectual capital, they can bury competition. So the whole thing
evolves to another level.

So, oddly enough, it seems trade secrets could be quite important and
should probably be explored more in business. We hear the success
stories of FLOS, some of us write them when we find them, but the real
success of the business is *never* FLOS. It's the capacity to make the
right decisions for the company in a shifting market. Which means that
one doesn't always necessarily want the competition to know how
something is done.

Let's say I take PGP, and I make it better. Super-whamodyne better. But
I only use it within my company. I have an advantage that (oddly enough)
FLOS gives. So let's say instead of playing the patent game, I decide to
keep it a trade secret. Then someone else comes along and does the same
thing, but patents it. Presently, it does not seem likely that someone
could stand up in a court of law and say, "That cannot be patented, it
is our trade secret!". Suddenly, we're in the world of the patent.

The point that 'intellectual property' laws are supposed to empower
creators - yet it takes away the capacity to have trade secrets, and
this is especially important for economic reasons, I think. Now, if
patents were only awarded to Flesh and Bone people instead of legal
entities, I imagine there would be a lot less patents. But now it's an
arms race and a cold war.

I think that the bottom line is that companies do need some privacy, and
FLOS gives that. Software patents have the capacity to destroy that.

Maybe you'll see where I'm going with this, and maybe we might want to
consider talking about trade secrets a little more. Consider - here in
Trinidad and Tobago, we have Angostura - world famous for Angostura
Bitters (ask your bartender). Two brothers have two parts of the recipe.
When a batch is being made, they go in one at a time and handle the
ingredients and mixtures that they know about, or so the legend goes.

What if someone patented the process for making these bitters? No trade
secret anymore. That's probably why they haven't patented their process.

I'm tired now, so I'll end here and pick up in the morning or whenever I
wake up. :-)

Taran Rampersad

"Criticize by creating."  Michelangelo